• Anonymous Second-Hand Tip Did Not Establish Reasonable Suspicion for Public Employee Drug Test
  • April 6, 2015 | Author: Alyssa M. Smilowitz
  • Law Firm: Jackson Lewis P.C. - Melville Office
  • A tip regarding employee on-the-job drug use by an unidentified source, relayed second-hand by a news reporter, is insufficient to establish individualized reasonable suspicion (required under the Fourth Amendment) to require a public employee to submit to a drug test, according to a recent decision by the United States District Court for the Eastern District of Michigan. Greer v. McCormick, 2015 U.S. Dist. LEXIS 31211 (E.D. Mich., Mar. 13, 2015).

    Ralph Greer, Jr. was employed as a construction inspector by the Detroit Department of Water and Sewage (“DWSD”), a public employer. In September 2013, Greer was assigned to a project involving the repair of a water main. During the course of this project, a television reporter contacted DWSD’s Director of Public Relations to advise that “an anonymous source allegedly told him that some undescribed individual driving a DWSD vehicle was smoking marijuana in that vehicle.” The tipster alleged that photographic evidence existed, but refused to provide such evidence. Based on this tip, DWSD determined that the vehicle had been assigned to Greer on the day in question. Without any additional corroboration, Greer was instructed to submit to a urine drug test. Greer refused to undergo the test, following the advice of his union representative and was ultimately suspended and discharged. Greer grieved the discipline and was reinstated without lost wages and benefits. The arbitrator specifically stated that the decision did not address whether the discharge violated Greer’s Fourth Amendment rights.

    Greer filed suit in the Eastern District of Michigan, this time naming the individual DWSD employees who ordered Greer’s submission to the drug test and who suspended and discharged Greer. Greer alleged that the defendants did not possess reasonable suspicion that Greer had engaged in illegal drug use while on the job. As a result, the drug test lacked any basis. In response to a motion to dismiss brought by the defendants, the Court concluded that the search (the drug test) was constitutionally impermissible. As a result, the defendants were not entitled to qualified immunity. At a minimum, DWSD was obligated to establish the reliability of the anonymous tip before conducting a search based on it. Because DWSD did not do so, the Court concluded that the anonymous tip did not provide the individualized reasonable suspicion sufficient to require Greer to submit to a urine drug test.